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On Thursday, Kansas Governor Sam Brownback received a letter from Federal Attorney General Eric Holder threatening action against the state should it enforce SB102 which Brownback signed into law last month.

The new law states, in part:

Any act, law, treaty, order, rule or regulation of the government of the United States which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas

The bill also provides for criminal penalties against federal agents who attempt to enforce specific federal laws on guns manufactured in the state of Kansas and sold within the state – as the state takes the position under the new law that the federal government does not “interstate commerce” authority over such items.

In his letter, Holder didn’t take too kindly to such a proposition.  He wrote:

“In purporting to override federal law and to criminalize the official acts of federal officers, SB102 directly conflicts with federal law and is therefore unconstitutional.”  

He continued, “Under the Supremacy Clause…Kansas may not prevent federal employees and officials from carrying out their official responsibilities.  And a state certainly may not criminalize the exercise of federal responsibilities.  Because SB102 conflicts with federal firearms laws and regulations, federal law supercedes this new statute; all provisions of federal laws and their implementing regulations therefore continue to apply.”

Let’s take Eric apart here.

1. Kansas is NOT purporting to criminalize the exercise of constitutional federal responsibilities.  On the contrary, the bill criminalizes what the state has determined is unconstitutional.   It is the position that such federal acts are indeed a violation of the Constitution.  No matter how much Eric might believe it to be otherwise, his view is obviously not universal – especially in Kansas.

2. The Supremacy Clause.  Holder takes the position that all tyrants do – that everything they do is authorized, anything to the contrary – worthless.  But Holder is wrong.  The Supremacy Clause doesn’t say that “any law in conflict with federal law” is void.  It says that only those laws “in pursuance” of the constitution are supreme.  The new Kansas legislation, again, takes the position that such federal acts are not constitutional, and therefore not supreme.

3. Historical Precedent.  The 1850 Fugitive Slave Act was a federal law that basically required all states in the north to act as slave catchers for black people claimed as property in the South.  It’s one of the most disgusting acts in American history.  A number of northern states passed laws similar to the new Kansas law, criminalizing federal agents for attempting to kidnap people in their states.    Although the feds still claimed the same kind of authority that Eric Holder has claimed today, they didn’t have the manpower to enforce.  Read more about that here.    As an aside, if Holder would like to take the position that such resistance to federal slave laws was wrong, he’s welcome to publicly state that.

Eric capped off his letter by assuring the People of Kansas that the federal government will continue to enforce all federal gun laws.  He wrote:

“I am writing to inform you that federal law enforcement agencies, including the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Federal Bureau of Investigation, the Drug Enforcement Administration, and the United States Attorney’s Office…will continue to execute their duties to enforce all federal firearms laws and regulations.”

4.  Manpower.   That brings us to the most important fact, the federal government simply does not have the manpower to enforce all its laws already.  The new Kansas law doesn’t just deal with firearms made within the state.  It also bans all state and local agents from enforcing federal gun control measures.  (learn about the bill in detail here).  As Judge Andrew Napolitano has affirmed recently, such widespread noncompliance makes federal gun control laws “nearly impossible to enforce” (video here).  So Eric can promise to enforce these federal acts all he wants.  But if Kansas doesn’t help him, he might be able to get a 2% enforcement rate.  Or, he’ll have to pull resources from other states.

WHAT SHOULD THE RESPONSE BE? 

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